By Sam Cicero, Jr.
From the April 2018 Issue
Today, 28 years after the Americans with Disabilities Act (ADA) passed, a surprising number of commercial properties remain non-accessible for the 50 million Americans with physical disabilities. In 2016 alone, more than 6,500 ADA lawsuits were filed in federal court relating to commercial properties which were deemed “disability unfriendly.”
New commercial construction is typically built to comply with the ADA and therefore is rarely the target of related lawsuits. However, when it comes to applying ADA to existing buildings, things get more complicated. Some commercial building owners and managers have the misconception that buildings that predate the ADA’s passing in 1992 are grandfathered in, so they can simply ignore the issue of compliance. In reality, companies are required to make appropriate efforts to meet ADA compliance standards whenever they choose to alter a primary function area, no matter the age.
An “alteration” is defined by the ADA as: remodeling, renovating, rehabilitating, reconstructing, changing, or rearranging structural parts or elements; changing or rearranging plan configuration of walls and full-height partitions; or making other changes that affect (or could affect) the usability of the facility.
It is important to note that unlike building codes which are prescriptive and considered minimum standards, the ADA is written vaguely and the prescriptive means of meeting the requirements are established in court by the judges as each situation is adjudicated. There is a great deal of room for judicial interpretation. As with all legal issues, the building owner or manager should consult with their attorney regarding specific issues.
In existing buildings, whether built before or after 1992, any move to alter a primary function area can trigger demand for ADA compliance upgrades, specifically within “Title III” that mandates commercial properties meet minimum standards for accessibility. For example, renovating a hotel lobby may mean that the building owner will need to adjust water fountains throughout the hotel, or that a new accessible route must be built that leads to the altered lobby.
So, what exactly is providing “accessibility”? For interior remodels, accessibility elements consist of doors, door hardware, thresholds, pounds of pressure to operate the door, signage, drinking fountains, and the closest restroom along the route from the altered area. For exterior remodels, accessibility elements consist of an “off-site” path of travel connection to the public sidewalk, accessible path of travel at the affected area, the nearest disabled parking, curb ramps, striping, and signage along the route of the altered area. When achievable, owners may need to remove “architectural and communication barriers” that are structural in nature.
Other required steps can include widening doorways to ensure these are wheelchair accessible, retrofitting restrooms, or adding access ramps. These changes are necessary when they can be accomplished without being unduly difficult or expensive. As a general rule of thumb, up to 20% of the construction costs must be dedicated to removing barriers, if any. If the cost exceeds 20% of construction costs then a “disproportionate cost” may be determined.
As an example, say an existing elevator in an apartment building does not meet ADA’s minimum clearance requirements. However, the elevator is big enough so that another person is able to fit into it with a person in a wheelchair. Estimates to replace the elevator range from $90,000 to $120,000 owing to the structural load bearing walls around the elevator not being easily altered. Due to the high cost for replacing the elevator, this would not be a readily achievable solution. And, since the elevator can still be accessed by a person in a wheelchair, it would probably not have to be replaced at this time.
There are alterations that do not trigger the ADA upgrade clause unless they affect the usability of a building. These are maintenance repair projects that consist of: heating, ventilation, and air conditioning; re-roofing; electrical work not involving placement of switches and receptacle; cosmetic work that does not affect items regulated by this code, such as painting; and equipment not considered part of the architecture of building or area, such as computer terminals or office equipment.
Hotels, in particular, have increasingly been the targets of ADA Title III lawsuits. It is strongly recommended that hotels maintain an ADA checklist and conduct regular ADA accessibility training for staff. Even if a hotel does not meet the technical requirements of the ADA, lawsuits can be avoided if hotel staff receive proper accessibility training.
In a hotel renovation, the minimum required number of accessible guest rooms required is a key factor. It is based on the total number of rooms being renovated or added, rather than the total number of in a hotel. Accessible guest rooms must be dispersed among the various classes of rooms, and provide choices of types of rooms, number of beds, and other amenities comparable to the choices provided to other guests. Also, there are two types of accessible guest rooms—one having “mobility features” and the other “communication features.”
Below is a list of steps that a hotel owner may need to take to meet ADA compliance requirements and make rooms and public spaces more accessible.
- Upgrading public and company restrooms to comply with ADA standards
- Widening door frames and installing accessible hardware on doors
- Adjusting water fountains
- Replacing problematic flooring
- Adding railings or grab bars in appropriate locations
- Creating or improving accessible parking
- Installing ramps or creating curb cuts at entrances
- Rearranging furniture and other features to reduce barriers to service
People with disabilities are living independently and participating actively in their communities. In addition, by the year 2030, approximately 71 million baby boomers will be over age 65 and demand products, services, and environments that meet their age-related physical needs. Studies show that once people with disabilities find a business where they can shop or get services in an accessible manner, they become repeat customers. Therefore, failure to comply with Title III standards can do more than leave a commercial building owner vulnerable to liability issues; it can turn away thousands of customers.
Cicero is President of Cicero Development, a general contractor based in Plainfield, IL that specializes in commercial renovation projects across the United States. In this position since 2012 after a 35 year career working in all areas of the company, he oversees daily operations of the business.
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